Citation Nr: 1527255
Decision Date: 06/25/15 Archive Date: 07/07/15
DOCKET NO. 13-28 583A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUE
Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Colin Kemmerly, Attorney
ATTORNEY FOR THE BOARD
K. Osegueda, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1989 to September 1997.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.
This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.
In addition to the VBMS claims file, there is a Virtual VA paperless file associated with the Veteran's case. A review of the documents in the Virtual VA file reveals VA treatment notes that are relevant to the issue on appeal. Since the receipt of those records, a supplemental statement of the case (SSOC) was not issued, and the Veteran did not submit a waiver of the RO's initial consideration of the evidence. However, this defect can be cured on remand. The remaining documents are irrelevant to the issue on appeal or are duplicative of the evidence in the VBMS file.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
In reviewing the Veteran's October 2013 VA Form 9, it is unclear whether the Veteran requested a hearing before the Board. It appears that he initially checked the box indicating that he wanted a videoconference hearing, attempted to erase the mark that denoted his hearing request, and then subsequently checked the box indicating that he did not wish to appear at a Board hearing. Nevertheless, in the statement attached to the substantive appeal, the Veteran's representative clearly stated on the last page that the Veteran wanted a videoconference hearing before the Board.
Under applicable regulation, a hearing on appeal will be granted if an appellant, or his or her representative, expresses a desire to appear in person. 38 C.F.R. § 20.700 (2014). Indeed, the importance of responding to a request for a hearing is recognized under 38 C.F.R. § 20.904(a)(3) (2014), as a Board decision may be vacated when there is a prejudicial failure to afford an appellant a personal hearing. Therefore, in order to ensure full compliance with due process requirements, the case is remanded.
Accordingly, the case is REMANDED for the following action:
The AOJ should take appropriate steps to schedule the Veteran for the videoconference hearing at the RO in Montgomery, Alabama, in accordance with his request. The Veteran should be notified in writing of the date, time, and location of the hearing. After the hearing is conducted, or if the Veteran withdraws the hearing request or fails to report for the scheduled hearing, the claims file should be returned to the Board in accordance with appellate procedures.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).